Regulation
Confession of Judgment Bill Still Awaits Governor’s Signature
July 9, 2019
New York State Governor Andrew Cuomo will have only ten days to sign S6395, the bill that prohibits companies from entering Confessions of Judgment in New York against non-New York State debtors, once its delivered to him. Only two possible contingencies could prevent that from happening:
(1) An official veto
(2) a pocket veto
Neither is expected to take place. Reining in the use of COJs was an official part of the Governor’s 2019 justice agenda.
The law only requires that a debtor reside or have a place of business in a New York county and that the judgment only be filed and entered in that county. Whether the filing party is located in New York or Florida or Alaska makes no difference. For a personalized legal analysis, contact an attorney.
The law also only affects a narrow process, the entering of a COJ in New York. It does not prevent parties from filing lawsuits in New York.
As the bill requires the Governor’s signature to become law, the usage of COJs in New York has dwindled but has not disappeared. New York State court records examined by deBanked demonstrate that some companies are continuing to file COJs in New York against out-of-state debtors and that county clerks are continuing to honor them. However, a handful of debtors appear to be challenging previously entered COJs on the basis of S6395’s passage through the state legislature. It remains to be seen how fruitful such defenses might be.
In recent weeks, a number of companies in the small business finance industry have publicly announced that COJs will no longer be required going forward.
You can follow the bill’s path to the Governor’s office here.
This article has been updated to reflect that the deadline rules first require delivery to the Governor
WATCH CAPITOL HILL HEARING LIVE: Crushed by Confessions of Judgement: The Small Business Story
June 26, 2019
The House Committee on Small Business will meet for a hearing titled, “Crushed by Confessions of Judgement: The Small Business Story” today at 11:30am. This hearing is intended to bolster support for The Small Business Lending Fairness Act, a bill to outlaw COJs in small business loans and merchant cash advances nationwide. (Read more about this initiative here)
The hearing will be live streamed here when it commences.
The witnesses scheduled to testify include:
Mr. Hosea Harvey
Law Professor and Consumer Finance Law Expert
Philadelphia, PA
Mr. Jerry Bush
Former Owner of JB Plumbing & Heating of Virginia, Inc.
Roanoke, VA
Mr. Shane Heskin
Partner, White and Williams, LLP.
Philadelphia, PA
Mr. Benjamin R. Picker
Shareholder, McCausland Keen + Buckman
Devon, PA
It’s Official, The Confession of Judgment Era is Over
June 19, 2019
The New York State legislature passed a bill (S06395) late Thursday night that effectively eliminates Confessions of Judgment (COJ) in the small business finance industry.
The Senate voted in favor 61-1.
The Assembly voted in favor 83-43.
The new law which goes into effect immediately after Governor Andrew Cuomo signs it, prohibits anyone from filing a COJ against a party that does not reside in New York State. That means if a small business or individual resides in any state that isn’t New York, you cannot file a COJ against them in New York. This matters greatly because 99% of all COJs industry-wide were being filed in New York due to the incredible ease and speed that New York Courts offer to turn those into valid judgments.
Debtors that reside in New York can still be subjected to New York COJs.
A particular sensational story series published by Bloomberg Businessweek created the impetus to change how such New York judgments by confession might impact out-of-state residents. The names of the Bloomberg reporters are written into the Bill’s official memo in the footnotes, memorializing for all time how this law came to be.
Within the small business finance industry, the percentage of funders that required a Confession of Judgment as a condition of their financing was relatively small. And their usage has been limited since COJs were only first introduced as a potential risk mitigation tool on merchant cash advances five years ago in 2014. However, Bloomberg News estimated that COJs have resulted in more than $1 billion in collective judgments over the years, mostly against non-New York businesses.
deBanked has received numerous inquiries regarding what this new law means for COJs already signed but not yet filed. That is a question for an attorney.
Did You Watch the NY Assembly and Senate Vote LIVE?
June 19, 2019With Governor Cuomo’s signature, this law immediately prohibits the filing of COJs against non-New York State residents.
#NYSenate Bill S6395, sponsored by Senator @bradhoylman, passed 61-1 (unofficial). Relates to judgment by confession:https://t.co/ybRXsLfwUk
— New York Senate (@NYSenate) June 19, 2019
That’s All Folks! COJ Ban in New York May Pass on Wednesday
June 17, 2019
The New York legislature has until Wednesday night to pass two bills that would prohibit the use of COJs, one on out-of-state debtors entirely and the other from being used as a condition in a financial contract. Either or both would effectively outlaw their use in the small business finance industry in New York State. If they do not pass a Floor vote by Wednesday night, the clock on the debate would reset until 2020 and the bills would have to be reintroduced in January.
Both bills have momentum. Both bills have a Democrat sponsor. The Democrats control the Assembly, the Senate, and the Office of the Governor. The bills have at least some support from Republicans. By all counts, at least one of these bills should pass this week.
Bill A07500 would prevent COJs being filed against Non-New York parties by requiring that they only be permissibly filed in a county in which the debtor party “resides.” This bill has already sailed through three committees, the most recent of which had unanimous bipartisan support. Its counterpart in the Senate is S06395.
A03636 is targeted specifically at small business lenders and merchant cash advance companies. “This bill will protect small businesses from predatory lenders that often offer loans and cash advances on the pre-condition that they sign a confession of judgment,” it says.
It’s possible the bills could also be reworded at the last minute.
There is no doubt where the impetus for these bills stems from. A07500’s official memo, for example, cites the controversial Bloomberg story series authored by Zeke Faux and Zachary Mider in its footnotes.
If either or both bills pass by Wednesday night, they would still require the signature of the governor. That step, a technicality, would probably provide clarity on the official date of which the amended law would go into effect.
Senator Elizabeth Warren Questions Federal Agencies About Discrimination in Fintech Lending
June 12, 2019
Senator Elizabeth Warren and colleague Senator Doug Jones (D-AL) addressed a letter to multiple federal agencies this week to inquire about their individual roles in overseeing fintech, particularly as it pertains to potential discriminatory underwriting.
The senators cited a UC Berkeley study that examined discrimination in the era of algorithmic underwriting. “With algorithmic credit scoring,” the researchers write, “the nature of discrimination changes from being primarily concerned with human biases – racism and in-group/out-group bias – to being primarily concerned with illegitimate applications of statistical discrimination. Even if agents performing statistical discrimination have no animus against minority groups, they can induce disparate impact by their use of Big Data variables.”
The letter tasked the Federal Reserve Chairman, OCC Comptroller, CFPB Director, and FDIC Chairman with responding to 5 questions by June 24th. They are:
1. What is your agency doing to identify and combat lending discrimination by lenders who use algorithms for underwriting?
2. What is the responsibility of your agency with regards to overseeing and enforcing fair lending laws? To what extent do these responsibilities extend to the fintech industry or the use of fintech algorithms by traditional lenders?
3. Has your agency conducted any analyses of the impact of fintech companies or use of fintech algorithms on minority borrowers, including differences in credit availability and pricing? If so, what have these analyses concluded? If not, does your agency plan to conduct these analyses in the future?
4. Has your agency identified any unique challenges to oversight and enforcement of fair lending laws posed by the fintech industry? If so, how are you addressing these challenges?
5. Has your agency identified increased cases of lending discrimination in financial institutions that participate in the fintech industry? Are there additional statutory authorities that would help your agency enforce fair lending laws or protect minority borrowers from discrimination in their interactions with the fintech industry?
One New York COJ Bill Moves Forward
June 5, 2019A bill that would prevent companies from using Confessions of Judgment against out-of-state debtors is progressing through the New York Assembly. A07500 cleared the judiciary committee on Tuesday despite some Republican opposition. The milestone comes as no surprise as the judiciary committee chair, Assemblymember Jeffrey Dinowitz, is also the bill’s sponsor.
Assemblymembers Niou, DenDekker, Wright, Wallace, and Schimminger are bill co-sponsors.
A07500 now heads to the Codes committee.
Lawyers: Earn CLE Credits While Learning About Alternative Finance
May 23, 2019
| June 13 Sessions | June 14 Sessions |
| Case Law Updates | Regulatory Download: The Complete Picture |
| TCPA: Defining ATDS, Exploring the TCPA and How Emails are Covered | Legislation, Business and Lobbying: How does it work and Does it work at all? |
| Bankruptcy Updates | Future Invoice Factoring and Traditional Factoring: Can’t We All Just Get Along? |
| Securities: A Lesson from Bitcoin and Recent Industry Case Law | Clean Contracts: Merchant Agreements, Inter-Creditor Agreements and ISO Agreements: What you MUST know to keep up with the times |
| Inside the UCC with Bob Zadek | |
| Collections in a Post Bloomberg World | |
| Ethics: Conflicts of Interest | |
| *Evening Social event at Lucky Strike in Manhattan Food, drinks and bowling! 7:00pm – 9:00pm* | *Rooftop Cocktail Reception, Castell Rooftop Lounge 3:00pm – 5:00pm* |
Admission Price List:
Admission for Members: $75
2-Day Ticket Includes:
- Day One: breakfast and lunch during the full day of panels. Evening at Lucky Strike with food and drinks.
- Day Two : Three panel discussions, lunch and cocktail hour immediately to follow.
Non-Member Attorneys $250.00 for the 2 day ticket
Non-Member Attorneys $150.00 for a 1 day ticket
(may only attend one of the two days.)
Corporate Guests (Day Two only) $150.00
Featuring the Following Speakers:
- Christopher Murray, Esq.
- Patrick Siegfried, Esq.
- William Molinski, Esq.
- Natalie Nahabet, Esq.
- David Fuad, Esq.
- Kate Fisher, Esq.
- Jamie Polon, Esq.
- Thomas Telesca, Esq.
- Richard J. Zack, Esq.
- Robert Zadek, Esq.
- Richard Simon, Esq.
- Anthony Giuliano, Esq.
- Mark Dabertin, Esq.
- Gregory Nowak, Esq.
Email Lindsey Rohan: lindsey@lrohanlaw.com
